I have been wondering whether the FBI has been coy about the ISIS-related arrests they’ve leaked to the press, in part, because those “terrorist plots” look minor compared to the murder, allegedly by Dylann Roof, of nine people at a black church in Charleston. As of four days ago, after all, Jim Comey was still weighing whether the attack on the historic black church by a right wing extremist who had written a manifesto explaining his views is terrorism. Did FBI miss the Charleston terrorism attack because it was focusing so much more closely on potential ISIS attacks? Does it want to avoid calling it terrorism because it would mean they failed to prevent a terrorist attack?

On April 11, Roof attempted to purchase a handgun from a store in West Columbia, South Carolina, a near suburb of Columbia. That day was a Saturday. On the next business day, April 13, an examiner in our West Virginia facility was assigned the case and began to process it.

Her initial check of Roof’s criminal history showed that he had been arrested in South Carolina March 1 on a felony drug charge. This charge alone is not enough to deny proceeding with the transaction. As a result, this charge required further inquiry of two potential reasons to deny the transaction. First, the person could have been convicted of a felony since the arrest. Second, the underlying facts of the arrest could show the person to be an unlawful drug user or addict.

[snip]

So the court records showed no conviction yet and what she thought were the relevant agencies had no information or hadn’t responded. While she processed the many, many other firearms purchases in her queue, the case remained in “delayed/pending.”

By Thursday, April 16, the case was still listed as “status pending,” so the gun dealer exercised its lawful discretion and transferred the gun to Dylann Roof.

Had the FBI tracked down Roof’s admission to doing drugs before that 3-day window expired, he might not have gotten the gun he used to kill 9 people, and maybe their lives would have been saved. (See this story from today on inaccuracies in the local records on Roof’s arrest.)

The release today of information on Alexander Ciccolo, the estranged son of a Boston cop who is charged with illegal gun purchases but allegedly was planning to conduct an ISIS-inspired attack on a university outside of Massachusetts, makes the comparison of these two alleged aspiring terrorists all the more poignant.

According to the detention memo and reporting from ABC, Ciccolo has had long difficulties with mental illness, and embraced Islam in roughly March 2013. On September 11, 2014, a “close acquaintance” (who may have been his father) reported him to the FBI, when they started monitoring his Facebook. On June 24 (just incidentally, a week after the Charleston attack, but also several weeks after Boston cops shot Usaama Rahim on June 2, and the month after Dzhokhar Tsarnaev (Ciccolo’s father took part in the manhunt for Tsarnaev) got sentenced to death in Massachusetts), an undercover informant (described as a “cooperating witness”) met with Ciccolo face-to-face; it’s unclear how long they had corresponded online first and how discussions of an attack first came up.

The detention memo makes it clear that Ciccolo was discussing attacks designed to inflict maximal casualties and he was modeling them at least partly on the Boston Marathon attack. Ciccolo — a cop’s son — said he had grown up around guns, so on that level, at least, he was probably far more competent than most plotters caught in stings. And while, as with most transcriptions of FBI recordings, this has lapses, the many changes in Ciccolo’s plans, as reported to the informant, makes it sounds like he was driving this plan (but also make him sound mentally ill). So Ciccolo looks like more of a threat than some of the people the FBI has caught in an FBI-planned plot.

That’s why the arrest and timing is interesting. On February 17, 2015, this guy — who was supposedly obsessed with Islam — was convicted of drunken driving, but given probation. That made it illegal for him to possess a gun that had been involved in interstate transit. An affidavit accompanying the detention memo describes that on July 2, after prompting from the informant, Ciccolo responded, “You get the rifles, I’ll get the powder” — though it also said Ciccolo had earlier “planned to rob a gun store to obtain firearms” — which for a number of reasons make the guns one of the dodgy aspects of his sting. On July 3, Ciccolo bought a pressure cooker from WalMart.

But you can’t arrest someone for buying a pressure cooker (at least not yet), especially given that he appears not to have obtained any powder to use in a pressure cooker bomb, given what they found in a search of his place. But you can arrest a felon for possessing guns.

On July 4, the informant gave Ciccolo (the memo says he “took possession of” and there is no mention of money exchanged) four guns, after which the FBI immediately arrested him.

And then the FBI sealed everything up. The docket still appears to be sealed, but he was apparently arraigned on July 6 (after two days), and the detention memo notes that he waived Miranda rights. “After the defendant was arrested, he waived his Miranda rights and spoke to FBI Special Agents Paul Ambrogio and Julia Cowley. The defendant refused to talk about the guns with which he was arrested but he reaffirmed his support for ISIL.”

The local press did report on the FBI’s search, but was denied information until today.

And thus far, at least, they haven’t charged Ciccolo with anything more — material support or a plan to engage in terrorism.

Now, as I have said, given the evidence in the documents released so far, it appears that Ciccolo may present more of a threat than most FBI sting targets (though he also seems like a guy who should have gotten mental health care years ago). As such, getting guns into his hands was a way for the FBI to get him in custody. We shall see how good the evidence is that Ciccolo, and not the informant, was driving the attack.

But ultimately, what we have here are two examples of alleged aspiring terrorists with prior arrest records tied to intoxicating substances that could be used to arrest them if they got a gun. In Ciccolo’s case, that was used as a way to get him in custody and — the FBI suggests — to prevent a planned attack on a college in another state. In Roof’s case, the FBI did the requisite background check but didn’t track down the actual records in timely fashion. Had the FBI tracked Roof — whose online activities the FBI continues to investigate, but appears to have been active on at least one Neo-Nazi site — as closely as it had been tracking Ciccolo, it might have caught him in a sting too.

But there’s no evidence the FBI tracks white supremacist threats of violence as closely as it tracks ISIS or Al Qaeda related threats of violence.

I’m not saying the FBI should have prevented the Charleston attack; I don’t think it’s possible for FBI to stop everything, nor do I support the kind of dragnets that might try.

But the comparison of what happened to these two alleged aspiring terrorists when they tried to obtain guns is notable.

the “clerical error” dodge is one of the oldest political/bureaucratic dodges used by governmental mfou’s.

the fbi should always be considered margininally competent to incompetent on any serious national policing matter until it proves otherwise.

with respect to domestic terrorism, an abortion doctor was murdered in kansas not that many years ago on a sunday standing in the shadow of the door of his church. the murderer was a well-known anti-abortion terrorist who had been harrassing the doctor’s clinic for years. 48 hrs or so before the murder the clinic had notified the fbi that the terrorist was once again acting out against the clinic by taking threatening action against the property. the fbi failed to protect the clinic or the doctor. had the american terrorist been a muslim the fbi ofgice and agents would have been all over him for therein lay the road to advancement in the fbi bureaucracy.

the congress always seems to have its head up its ass when it comes to fbi action and fbi testimony, credulously accepting what should be strongly questioned and failing to strongly question likely incompetence (as in the failure to follow up leads re the sept 2001 “pilots’ ” training) . perhaps the fact that there are far too many former prosecutors serving in the congress has something to do with its blindness and favoritism.

quote’Did FBI miss the Charleston terrorism attack because it was focusing so much more closely on potential ISIS attacks? “unquote

wait..wait.. you call the Charleston attack “terrorism”, yet in the next question, you imply the FBI does not, because you imply if they did call it terrorism, it would mean they failed to prevent a terrorist attack? So tell me, who are you to define this insidious attack as terrorism? Under what defined criteria? One thing I know for a fact,..this was NOT an act to “persuade, intimidate, or coerce a government or it’s policies…” no?

So..how can you call it terrorism.? This was an act of overt racism. period. While this dispicable act was aimed at terrorizing a group belonging to or representing the target of this sick motherfucker, his act still belongs in the domain of domestic crime..not terrorism. At least.in my humble opinion. So..that leaves this…

quote”Does it want to avoid calling it terrorism because it would mean they failed to prevent a terrorist attack?'”unquote

I believe for once, the FBI sees and defines this crime for exactly what it is. The entire planet full of human beings suffer the nature of it’s own specie.

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You are missing a crucial part in your definition of ‘terrorism’. You call it:
“…persuade, intimidate, or coerce a government or it’s policies…””

it is defined in the US as:

“The U.S. Code of Federal Regulations defines terrorism as “the unlawful use of force and violence against persons or property to intimidate or coerce a government, the civilian population, or any segment thereof, in furtherance of political or social objectives” (28 C.F.R. Section 0.85).”
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Racist acts such as what he did are terrorism. They are specifically to intimidate the civilian population, and members of the government(s) that may be acting to end certain practices.
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Might have been a repeat offense – a detail I haven’t seen explicated one way or the other yet.
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Moreover, it appears from the recounting of his talk and scheming with the informant that he talked about knocking over a gun store to get the guns they wanted for their plot. Setting aside the utter idiocy of trying to rob a gun store during business hours – a good way to get shot – it should be remembered that theft from the inventory of a federal firearms license holder is a separate federal crime. Last I heard, that one carried a 10-year sentence.
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Not really surprised they didn’t charge him with an attempt – it would devolve into a he said-she said whizzing contest between him and the snitch AND there’d be the additional issue of whether it was a true “threat” or just idle talk. See, Elonis. So, they got guns into his hands and charged him as a prohibited person in possession.

As I understand it, the defendant’s [estranged] dad, a Boston police captain, told the FBI about his son’s radicalization. It appears the FBI sent out a snitch to draw out the defendant and built the case around that. When the FBI was ready to bust him, they got the guns into his hands – transferred without a sale.

There are a lot of moving parts, but it’s been in place since 1994 or so and the bugs seem to have been worked out. From the public’s side, it’s intended to be simple and clear. The complexities come in on the back end, where the information gets put in to determine who gets a “proceed” and who does not. The three-business-days provision seems to work as a goad – and a strong one at that – for the back-end people to get the information in and get it right. It’s very rare that there’s any sort of a problem. This is the only instance I can recall where someone got through the system because the system failed, as opposed to someone getting through by lying (and only later getting caught).

Reading the government’s filing – a brief of sorts seeking to have the defendant denied bail – shows that the Mass. statute under which this guy was convicted of DUI/OUI carried a sentencing exposure of 30 months.
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In another instance of dimwit-ism, this guy somehow thought he could get his hands on powder easily. There’s been an intractable shortage of all sorts of gunpowder since the week after Sandy Hook, when it became clear Obama was going to pivot to try to get more gun control. As soon as it hits the shelves, it seems to get bought.

Except that a Misdemeanor is, by definition, a crime punishable by 1 year of less imprisonment. That is the difference between a felony and a misdemeanor under both federal and state law to my knowledge.

This has been upheld countless time in federal court in order to deny persons rights, as they would deny a felon, with regard to “unclassified crimes” that could result in a custodial sentence of 1 year or more or in the case of state crimes or (in Illinois, for instance) where the conviction is expunged by operation of law but still “exists” for purpose of sentencing guidelines in subsequent federal crimes.

As a lawyer you should know that a guilty plea to a misdemeanor “possession” charge does not constitute an admission to being a drug addict or even drug user. “Roof’s admission to doing drugs” does not exist in the record to my knowledge, nor does a misdemeanor charge for drug possession charge disqualify a person from purchasing a gun.

The FBI background check questions are phrased in just such a way that a person with such a criminal background can legally purchase firearms. and many, many have.

Why is it that nobody is reporting on this ? Why is it being covered up? Why is Comey such an idiot? I think that on some level there is an unstated agreement that the status quo is preferable to both sides of the presumptive debate and the sooner this goes away the better. Either that is true or this is Comey’s attempt to disenfranchise thousands of legal gun owners with a simple possession charge on the back of a national tragedy… now that I think about it it’s most likely the latter…

At the request of EW, I’m posting my expanded analysis of the Dylan Roof background check matter, along with some exposition on the whole background check procedure and underlying law. Please note, though, that the story keeps moving as more information comes into the public domain. Moreover, please note that (a) while I’m discussing the law, this is not legal advice, and (b) I have not delved into the depths of the federal regulations interpreting the statutes involved.

The Dylan Roof background check story is getting murkier and murkier. It does, however, seem clear that he did pass the background check. [As noted below, later-developing information shows it was through the 3-business-day provision.] Whether he should have or not is something of an open question the answer to which depends on:
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(a) the charge he was facing,
(b) how FBI and the insta-check people coded that charge v. the requirements of the federal gun control statute,
(c) whether the coding was accurate/correct,
(d) whether the charge was accurately entered into the database,
(e) whether things were done accurately and within proper procedure, and
(f) whether he was truthful on his form 4473.

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We’ll start at (f) and work backwards. Take some time and look at the form 4473. https://www.atf.gov/file/61446/download
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This is the form a purchaser fills out when they want to buy a gun from/through a federal firearms license holder, e.g., at a store which sells guns. It is used to effectuate the federal instant background check. While it does mention states, that’s in regard to states which take care of running things through the instant background check in order to effectuate the states’ own background check requirements. It does not otherwise address state law, nor do I.
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Since we know Roof got the gun from a store, the procedure in states like the one where I live – which has no state-level gun purchase laws beyond requiring proof of residence and passing the federal background check – which I assume is similar to South Carolina’s goes something like this.
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1. The buyer goes into the gun dealer’s physical store and picks out the gun he wants to buy, reaches an agreement with the store as to the price.
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2. The store’s representative – the person behind the counter who is authorized on the store’s federal firearms license to do transactions – slides a copy of form 4473 and a pen across the counter and takes some government-issued ID (photo ID is strongly preferred if not required) from the buyer and ascertains that the buyer is who he/she says and also that the buyer is not buying for someone else. If the buyer is buying for someone else (including things called “straw purchases” but also things called “Christmas gifts”, neither of which is in issue here) that someone else gets a 4473 to fill out – they have to pass the background check.
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3. The buyer fills out the 4473, in ink. Some high-volume stores have access to an electronic form 4473, which is filled out on-line.
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4. The buyer signs the completed form 4473 and hands it across the counter to the seller. Seller checks it initially for completeness and for some of the answers to the questions: question 11 and its subparts address things which disqualify the buyer from possessing a firearm and, if you answer “yes” to any of them the instructions on the form tell the seller to stop the transaction before even calling the instant check folks – the transaction cannot proceed because the buyer cannot take possession of the gun.
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5. If the transaction appears from the form to be ok to go forward, then the seller goes to the back office and makes a phone call to the instant background check line. The seller gets a live person on the other end, gives them the FFL identifier number, his name, and a codeword unique to him and his store (this, to ensure it’s really him and not someone masquerading). Passing this test, the seller then gives the background check operator information from the form about the buyer and the gun (long gun or handgun), including the buyer’s name and SSN.
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6. The background check operator runs this information through their database and comes back with an answer.

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The background check people can give 4 responses: “Proceed”, “Cancelled”, “Denied” or “Delayed”. Those are the words they use. Only if they give “Proceed” does the transaction go through immediately. “Cancelled” and “Denied” stop the transaction permanently. “Delayed” gives the government 3 business days to decide to allow or disallow the transaction. If they do not decide within 3 business days, then the transaction can go forward.
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The point of the 3 business-day provision is to force the government to act.
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Note that, until the instant background check operator comes back with “Proceed”, neither the money nor the gun change hands. Once the answer comes back “Proceed” or, after a response of “Delayed” 3 business days pass with no response from the government, only then can the money and gun change hands.
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Why this rigamarole? This was developed through a lot of negotiations leading up to the 1994 law which implemented it. There was a concern that the government would use the information derived from the background checks to create a database of who owns guns. History showed that almost uniformly such registries were followed sooner or later by confiscation, anathema to gun owners. I and most other people who really think about it have a hard time believing there is not such a database developed already but that’s another story.
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I’ve gone through this a number of times and, because I have no arrest record and a clean (non-existent) criminal record, as well as an uncommon name, it only takes a few minutes. You can imagine, though, that someone with a common name, “John Smith” or such, might take a bit longer, as well as someone with an arrest record or criminal conviction(s).
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What seems clear by now about Roof is that the response from the background check was “Delayed”, and that the three-business-day period elapsed with no resolution, resulting in Roof being allowed to “Proceed”. The whys behind that delay are bound to be an epic exercise in finger-pointing among the various federal, state and local law enforcement agencies.
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We can, however, look at what we “know” from press reports and compare it to the rules. In Roof’s case, Questions 11 (b), (c) and (e) on the 4473 are most pertinent.
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If the charge he was under carried a sentencing exposure of 1 year or greater (my sub (a), (b) and/or (c) above), they should not have allowed the transaction to proceed, i.e., come back with “denied” during the 3-business-day period. It appears that there was some confusion on the nature of the charge Roof was facing – whether it was a “felony” or other charge with sentencing exposure greater than 1 year. That screw-up is on the government.
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If the background check folks made a mistake on the exposure under the statute he was charged with violating (my sub (d) above) or made a cross-referencing error (my sub (e) above), then it’s on the government.
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If he lied, he’s just exposed himself to serious federal time. [After SC gets done executing him, of course.] There was a Supreme Court case on this point within the last year or two.
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If he was under a charge of using pot, answering 11(e) truthfully could be problematic – he’d be within his rights to decline to answer on his 5th Amendment rights if the charge involved using pot. Of course, declining to answer any of the questions on the 4473 is supposed to result in the seller stopping the transaction before even calling the instant background check line. OTOH, Roof would also have been within his rights to say “No, I am not an unlawful user of pot”, in accordance with having entered a “not-guilty” plea.
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You will note, if you go into the definitions and such further down on the 4473, that there is no definition given for “unlawful user of or addicted to…” yadda yadda.
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In the same vein, it appears (thank you, EW) he may have been busted with methadone. I have not looked into the regulations -which might define “unlawful user or addicted to”, etc. – but since the only legally-recognized use for methadone I’m aware of is to ameliorate opioid addiction, though it is also widely abused (i.e., “unlawful use[r]”), a careful look at the charging documents might have shown him to be ineligible under 11(e). In other words, being charged with a drug offense, particularly methadone, might have been an automatic DQ under 11(e) regardless of how he answered, even assuming a “no” answer was not a “lie”.
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But, it appears the government missed this. They seem to have gotten screwed up on where jurisdictional lines are drawn – his arrest was near a jurisdictional line – and looked in the wrong PD’s records. They may have also possibly screwed up on the nature of the charge. And whether it was a felony or greater than one year exposure.
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So, to the extent Roof slid through, it seems to have been on the government.
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Setting all that aside, I’d like to close by asking you to consider a larger, though more subtle, issue. There exists a bureaucracy created to track allegations and convictions of criminality and decide on the relative merits of people, all within minutes or even seconds. This bureaucracy has to track every person in the US. This is all in addition to the surveillance the government is already doing. It’s of a piece with with the E-Verify system now in place for employers getting government permission to hire you – making sure you’re eligible to work in the US. Do you really like the idea of the government having that much power over your life?

The Lexington clerk of court has the records online. The FBI could have gotten the documents with a simple call to the clerk. The real question is the final conclusion the FBI examiner made. A gun shop can not file away a 4473 on a delayed status. They need to get a proceed or denied from the FBI. The 3 day wait doesn’t ended the FBI review. If roof got a denied, then the FBI needs to explain why they didn’t arrest him and the ATF needs to explain why they didn’t go and recover the gun.